U.S. Department of Justice Civil Rights Division DJ 192-06-00025 Coordination and Review Section P.O. Box 66118 Washington, D.C.

20035-6118 JUN 15 1992 Charles E. Scharbrough, AIA, CSI Paul I Cripe, Inc. 7172 Graham Road Indianapolis, Indiana 46250 Dear Mr. Scharbrough: This letter responds to your April 29, 1992, letter requesting a clarification of the relationship of the program accessibility requirements of the Department of Justice's regulation implementing title II of the Americans With Disabilities Act (ADA), 28 C.F.R. part 35, and the accessibility guidelines for newly constructed or altered facilities contained in the Americans With Disabilities Act Accessibility Guidelines (ADAAG). ADAAG was issued by the Architectural and Transportation Barriers Compliance Board (ATBCB) and is found at Appendix A to the Department of Justice's regulation implementing title III of the ADA, 28 C.F.R. part 36. These regulations became effective on January 26, 1992. The ADA authorizes the Department of Justice to provide technical assistance to entities that are subject to the Act. This letter provides informal guidance to assist you in understanding how the ADA may apply to you. However, this technical assistance does not constitute a determination by the Department of Justice of your rights or responsibilities under the ADA and does not constitute a binding determination by the Department of Justice. Concerning the requirements for program accessibility, 28 C.F.R. 35.150 provides, in relevant part: (a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with

disabilities. Recently, the Department issued a Title II Technical Assistance Manual that explains the requirements of program accessibility in existing facilities under section 35.150. We have enclosed a copy of the manual for your information. 01-00939 -2On the issue of program accessibility, a city, county, or State may not deny the benefits of its programs, activities, and services to individuals with disabilities because its facilities are inaccessible. The services, programs, or activities, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities. Public entities, however, are not necessarily required to make each of their existing facilities accessible. See Technical Assistance Manual at 19-20. The primary focus of program accessibility is not on existing facilities but whether the programs, services, or activities provided by a local government are readily accessible to individuals with a disabilities. Program accessibility may or may not require alterations to existing facilities. With respect to the construction of new facilities or the alteration of existing ones, the title II regulation provides, in relevant part, at 28 C.F.R. 35.151: (a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992. (b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.

Thus, all facilities designed, constructed, or altered by, on behalf of, or for the use of a public entity must be readily accessible and usable by individuals with disabilities, if the construction or alteration is begun after January 26, 1992. Under the regulation, public entities may select from two design standards for new construction and alterations -- the Uniform Federal Accessibility Standards (UFAS) or the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG), which is the standard that must be used for public accommodations and commercial facilities under title III of the ADA. 28 C.F.R. 35.151(c). If ADAAG is chosen, however, public entities are not entitled to the elevator exemption (which permits certain buildings under three stories or under 3,000 square feet per floor to be constructed without an elevator). See Technical Assistance Manual at 23. Therefore, the standards for 01-00940 -3of the ADA. 28 C.F.R. 35.151(c). If ADAAG is chosen, however, public entities are not entitled to the elevator exemption (which permits certain buildings under three stories or under 3,000 square feet per floor to be constructed without an elevator). See Technical Assistance Manual at 23. Therefore, the standards for the construction of new facilities or alterations to existing facilities address the facility itself rather than the program, service, or activity offered there. New facilities must be constructed so that they are readily accessible to and usable by individuals with disabilities without regard to the program, service, or activity that will or may be offered in the facility. Even where a public entity fully complies with ADAAG or UFAS in constructing new facilities or altering existing ones, if an individual with a particular disability is unable to enter a facility where a program, service, or activity is offered (e.g., a ramp complying with ADAAG standards is too steep for the individual to ascend), a public entity would have to make the program, service, or activity offered in the facility accessible. Program accessibility could be provided through such means as relocating the program, service, or activity to an accessible site. Therefore, program accessibility may impose stricter standards than those required for new construction because all individuals must be served.

In your letter, you reference some ADAAG scoping requirements for parking and assembly seating areas. The ATBCB has determined that these scoping requirements are the minimum standards for these particular elements to make a new facility accessible. This does not mean that existing facilities necessarily would have to be altered to comply with these scoping requirements. Program accessibility is based on whether a government's programs, activities, and services, when viewed in their entirety, are readily accessible and not whether a particular facility is readily accessible to and usable by individuals with disabilities. This determination should be made as part of the public entity's self-evaluation process. I hope this information is helpful to you. Sincerely, Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division Enclosure 01-00941